Nude shots of Ellen Page from Beyond: Two Souls introduce many legal questions.

When nude images of Jodie Holmes, actress Ellen Page's character from Beyond: Two Souls, began appearing on the Internet a few weeks ago (courtesy of a repositioned shower-scene camera running on debug hardware) we thought the story was a little too tabloidy to cover. This kind of embarrassing, tawdry celebrity gossip is pretty common in the entertainment industry, even if it's relatively rare in video games particularly. Scandals revolving around supposedly inaccessible adult content in games aren't completely unheard of, though; remember GTA: San Andreas' Hot Coffee?

But when reports surfaced earlier this week that Sony was making vague legal threats in an effort to remove those images from the Internet, our news ears started perking up a little.

Nordic entertainment site Eskimo Press was the first to report that Sony Computer Entertainment Europe asked them to take down the leaked images, citing unspecified "legal reasons" for the request. This action came despite the fact that Eskimo Press merely linked to the images on another server rather than hosting them itself. Culture site Gaming Blend said it received a similar request from Sony Computer Entertainment America, which went so far as to request that the original story be taken down entirely.

"The images are from an illegally hacked console and are very damaging for Ellen Page," the rep reportedly told Gaming Blend. "It’s not actually her body. I would really appreciate if you can take the story down to end the cycle of discussion around this."

These Sony reps' casual citations of "legal" and "illegal" got us wondering whether there was actually any law or contract broken here, either on the part of the source that leaked the images, the press that reported on it, or even the companies that made the game.

First up, there's the still-anonymous person who leaked the images. To start, talk of a "hacked" console being used to generate the images seems inaccurate. The images appear to come from a "debug" PS3, a special console designed for developers and press to run and potentially modify non-finalized code. The console and game software likely didn't have to be modified in any way to access the displayed "QA Mode" that made the new camera angles possible. Any legal issues with the shots would likely hinge on the language included in any contract the leaker may or may not have signed to get access to the debug hardware and a "debug" copy of the game. But it's not clear what, if any, such agreements the leaker may have been party to. Sony and Quantic Dream have not responded to requests for comment on this story.

Now that the images are out there on the Internet, there's probably little Sony can do to legally prevent people from using and discussing them, at least under US law. "I would think first amendment protection in the US would allow them to be published," Editor in Chief of the Law of the Game blogger Mark Methenitis told Ars. "Consider how much the press has published about far more sensitive topics dug up by more dubious means. Of course, Sony has a slightly more unusual relationship with the game press, and that relationship may be leveraged to have many of these pictures removed. I'd certainly be interested to see the requests they're sending out, as that may give a clearer picture of what their thinking is."

It's worth pointing out that only two sites so far have publicized Sony's request to take down links to the images being discussed here. That's out of dozens that have written about the issue. This could mean that the "takedown" effort, such as it is, has been more of a light, scattershot attempt rather than a sweeping effort so far. In any case, there's a bit of a Streisand effect already at work here, with posters at reddit and elsewhere working to call wider attention to the images now that Sony is attempting to block them.

What about Sony and Quantic Dream's possible legal liability in creating the nude 3D model that actually shows up in these shots? Clauses disallowing nudity are pretty common in acting contracts, and they could well be in play for Page's work in Beyond. In the movies, these clauses are usually pretty easy to enforce: either the studio released nude footage or they didn't. In this case, Quantic Dream is in a sort of gray area. It seems to have created a full nude model of Page's character, but the company made it impossible to view it from the most compromising angles within the course of normal gameplay. Are they liable simply because someone found a way to view that model in an unintended way?

"My guess is [Page's contract would contain] a complete bar [on nudity], in which case including the model in a way that can be accessed at all probably trips it," Methenitis said. "Now, if there was a EULA [end-user licensing agreement], and the user was violating it, it becomes a question of whether the user who created the images by violating the EULA could also be brought into the case and how the liability would fall between Sony/Quantic Dream and the user."

Interestingly, Quantic Dream may have put itself at greater risk here by deciding to go with real-time, in-engine scenes rather than using more heavily controlled pre-rendered footage. "If that model's use had been relegated to rendered cut scenes, rather than just freezing the camera, and was therefore not needed to be included in the final game, this could have been avoided, short of someone stealing the model from QD's internal storage," Methenitis pointed out. Of course, using pre-rendered shots could have impacted the minimal interaction players have on these scenes in question.

The difference between a 3D model and an actual nude image also introduces another potential legal wrinkle in any case Page might have against Sony and Quantic Dream. The developer could argue that the images show a fictional character that happens to look like Page, which isn't precisely the same as, say, a movie that included direct nude images of the actress. This might be a thin technicality considering that the character was directly modeled off of motion capture data provided by Page, but court cases have hinged on smaller issues.

Whether that argument flies might depend on the state that eventually takes up the case. "California has pretty broadly interpreted the right of publicity in the past," Methenitis said. "Robots bearing no resemblance to the celebrity put in a situation that suggests the celebrity, for example, [could be in breach]. So if you could make a right of publicity case, then I don't see why this 3D model wouldn't get there. It would certainly be interesting, though, to see arguments made as to the accuracy of the model, which I imagine Sony might use to try to diminish the claim. What a very odd day in court that might be (though I have to imagine it would settle long before it got to that)."

Legal pressure from Page would help explain why Sony has finally decided to start going after press mentions of the images weeks after they first appeared. In any case, it seems that creating a nude model and trying to hide it through virtual camera trickery might not provide a sufficient legal defense for a game developer. The lesson seems clear: if you want to be safe, smooth out those naughty polygons even if you think no one will ever see them.

Kyle Orland
Kyle is the Senior Gaming Editor at Ars Technica, specializing in video game hardware and software. He has journalism and computer science degrees from University of Maryland. He is based in the Washington, DC area. Emailkyle.orland@arstechnica.com//Twitter@KyleOrl

219 Reader Comments

Wonder when `last of us` is going to get hit with image infringements, a _lot_ of people think the lead female protagonist was modeled on Page.... The devs claim otherwise, but the ressemblance is, uncanny

This is probably about as damaging to Ellen Page as making a sex tape was for Kim Kardashian. The only thing that could come out of this is free publicity for both the game and the actress with the way todays society is with celebs (especially nude ones, even though this is a fake CGI body we are talking about here).

Wonder when `last of us` is going to get hit with image infringements, a _lot_ of people think the lead female protagonist was modeled on Page.... The devs claim otherwise, but the ressemblance is, uncanny

While uncanny, the resemblance can still be a complete coincidence.

Case in point: Archer character Lana Kane was created before the voice acting actors were cast, leading everyone to believe that she was physically modeled on her voice actress Aysha Tyler when in fact it is a complete coincidence despite the stunning resemblance to the point where Aysha jokingly said in interviews that if there ever was a live-action movie filmed, she would beat up anybody going against her in auditions.

Shouldn't the nude model be a barbie doll with no nipples and privates?

It looks like someone actually did the hard work to ... uhh... finish her bits. If I was Paige I'd be angry too, since this seems like someone in the video game went through a lot of work to... show us the full Monty.

Wasn't expecting to see this come up around here. They seem to have the proportions right but it's still a 3D model made by someone on the dev team. Heavy Rain also had something similar so it may be something with the way they work the engine.

The difference between a 3D model and an actual nude image also introduces another potential legal wrinkle in any case Page might have against Sony and Quantic Dream. The developer could argue that the images show a fictional character that happens to look like Page, which isn't precisely the same as, say, a movie that included direct nude images of the actress. This might be a thin technicality considering that the character was directly modeled off of motion capture data provided by Page, but court cases have hinged on smaller issues.

Was she completely nude when they motion captured her? If not then wouldn't the "naughty" bits be an artistic guess?

I'm a little confused about the likely origin of these images. They're not in the actual game, correct? And the idea that a hacked console created them seems unlikely, correct? So...what's left? Did someone within the actual developer create these images for their own, um, amusement? I surely hope that's not the case.

I tried to make this clear in the article, but the nude model exists in the game and is shown from some "tasteful" angles in a couple of shower scenes. The leaked images appear to come from someone with a debug console just changing those camera angles.

So how would the legal situation change if they had used a nude model that looked nothing like Ellen Page, such as an African or male model (or an Orc), but still used her mocap data? Would it still be considered "her"?

Depending on how her contract was worded, this could be a very murky area.

I had to actually look up who Ellen Page was. Then found some non-faked nudes of her that already exist that apparently she took.

Whomever hacked this is in the wrong, but not sure it's going to hurt her career in the least bit. As previously stated, it probably will only help.

It's from a dev/debug console.

The more important question as someone already pointed out is...if the character is clothed in the entire game, why was there a need to add special textures to the model (aka, why couldn't it be like a barbie doll model)?my guess is one of the devs at the game studio might be an Ellen Page fan.

That said....if it wasn't based on Ellen Page except the face (partial likeness)...wouldn't it be more like those celeb fakes on the Internet? It would be interesting to get a reputable law professor (Lessig perhaps?) to comment.

I'm guessing they used some kind of stock nude female body model with the character head model attached to it, possibly using a similar or related body model for the rest of the game.

Otherwise, why would they have a fully built, anatomically correct model for a scene where that kind of model detail and completeness is not necessary and intentionally not viewable by the player?

This basically sounds like Hot Coffee again. The devs put this stuff together for their own 'enjoyment' and basically left it in the game with a wink, knowing that it would eventually be accessed by someone with a little effort.

So how would the legal situation change if they had used a nude model that looked nothing like Ellen Page, such as an African or male model (or an Orc), but still used her mocap data? Would it still be considered "her"?

Depending on how her contract was worded, this could be a very murky area.

And that's what I, personally, find interesting about this article, and why I think it's different than just "juicy celebrity gossip."

So wait, is the model anatomically correct? Is that what the fuss is about?

Either way I don't see how it hurts the voice actor.

Because a lot of people have lost jobs and contracts over nude pictures floating on the internet. Yes I know it sounds silly, but it happens. And if Ellen Page loses a job offer because of this at any point in the future, then harm will have been done for something she had no control over despite assurances (I can only assume) were made to her wouldn't happen.

If they weren't going to include all of the model in the shots, why did they make it anatomically correct? I never minded a bit of topical fakery that was discovered while noclipping through some games, and in fact used it quite a bit myself to save some time when designing levels and things no normal player would ever see.

Wonder when `last of us` is going to get hit with image infringements, a _lot_ of people think the lead female protagonist was modeled on Page.... The devs claim otherwise, but the ressemblance is, uncanny

I'm a little confused about the likely origin of these images. They're not in the actual game, correct? And the idea that a hacked console created them seems unlikely, correct? So...what's left? Did someone within the actual developer create these images for their own, um, amusement? I surely hope that's not the case.

I tried to make this clear in the article, but the nude model exists in the game and is shown from some "tasteful" angles in a couple of shower scenes. The leaked images appear to come from someone with a debug console just changing those camera angles.

Right, I got the angle part -- I guess I'm wondering if the actual nude model images created by the developer itself or if they left that part of the character model for the scene blank because they knew they wouldn't be using a nude scene. My point being: why if your Quantic Dream, would you create a fully nude model of the actress if you knew you were NEVER going to use it? I mean, why risk the headache of that content leaking out?

My guess is they just started with an anatomically correct model. They've had nudity in previous games, they probably have a few models they can base on. It would have probably been more work to remove the bits and pieces, and they probably didn't account on somebody using a debug console.

Wonder when `last of us` is going to get hit with image infringements, a _lot_ of people think the lead female protagonist was modeled on Page.... The devs claim otherwise, but the ressemblance is, uncanny

While uncanny, the resemblance can still be a complete coincidence.

Case in point: Archer character Lana Kane was created before the voice acting actors were cast, leading everyone to believe that she was physically modeled on her voice actress Aysha Tyler when in fact it is a complete coincidence despite the stunning resemblance to the point where Aysha jokingly said in interviews that if there ever was a live-action movie filmed, she would beat up anybody going against her in auditions.

I dunno, a serious contender for Lana Kana would have 'Truckasaurus' hands, so it'd be a tough fight.

Shouldn't the nude model be a barbie doll with no nipples and privates?

It looks like someone actually did the hard work to ... uhh... finish her bits. If I was Paige I'd be angry too, since this seems like someone in the video game went through a lot of work to... show us the full Monty.

Yeah, it does seem a bit strange to me, although I can't say that if I had detailed mocap of Ellen Page, that I wouldn't take the time to make the model anatomically correct. For research purposes, of course.

Legal pressure from Page would help explain why Sony has finally decided to start going after press mentions of the images weeks after they first appeared. In any case, it seems that creating a nude model and trying to hide it through virtual camera trickery might not provide a sufficient legal defense for a game developer. The lesson seems clear: if you want to be safe, smooth out those naughty polygons even if you think no one will ever see them.

So I have to say that the phrase 'naughty polygons' is going to be with me for quite a while. It does a quite remarkable job of encapsulating the idea that as much as we talk about the pictures be of 'her' and the fact that they might or might not be illegal, in the end, it's all about a set of numbers that don't even describe anything that was ever real.